Nolfo McKenna – Probate in New York: Exposing the Myths Part 2 – Albany, NY

Probate Part 2 Serving as an Executor

What is involved if you are named as an Executor under a Last Will and Testament? An executor is considered a fiduciary under the law, and with that title comes specific responsibilities. An Executor must act in the best interest of the estate, and follow the decedent’s instructions as directed in the Last Will and Testament. My office gets involved when someone who has been named as an Executor under a Will is seeking to probate that Will. My office handles probate proceedings for estates in Albany NY, Clifton Park NY, Schenectady NY, Rensselaer NY, Saratoga NY, as well as Greene and Ulster County. Each county has its own Surrogate’s Court.

If someone passes away in Albany County, and they resided in Rensselaer County, but owned a condo in Saratoga County for track season, and a cabin on a lake in Ulster County for fishing, we would generally bring the probate proceeding in Rensselaer County, not Albany, Saratoga or Ulster County. If we attempted to bring the probate proceeding in Ulster County, the Surrogate’s Court in Ulster County would most likely reject our probate petition and advise us to file our probate petition in Rensselaer County. This is due to our laws regarding jurisdiction and venue for probate proceedings. What if the executor lives in Albany County? That is not a problem with most courts. Occasionally, a Surrogate’s Court will require a bond filed by the executor, but that is not common in most probate proceedings. My office has represented many executors who reside in another state, including Florida and California.  There may be some delays due to time spent mailing items back and forth, but with today’s technology, it is rarely a problem.

What if the named executor has passed away, is ill or is otherwise unable to act as executor in a probate proceeding? Most attorneys will suggest a client name a Successor Executor in the Will, and by submitting a form or a death certificate from the Primary Executor named in the will, the Successor Executor may serve as the Executor.

Can the Executor start their work immediately after the death of the decedent? The simple answer is no. The executor must be appointed by the appropriate Surrogate’s Court, in the appropriate county. In fact, I advise all Executors to wait until they are properly appointed. However, if there is a pressing matter, such as a property in Albany County that is expected to be sold before the Surrogate’s Court has an opportunity to probate the Will, then my office would petition the Surrogate’s Court for Temporary Letters Testamentary.

When the Will is submitted for probate, the Court will set a return date in Surrogate’s Court. It is at that time anyone who wishes to contest the validity of the Will appears in person, or by their attorney. If no one opposes the probate, and the Court finds no issues with the validity of the Will, the probate process will move forward, and the Court will issue the Executor Letters Testamentary. These letters allow the Executor to act on behalf of the Estate. The Executor may collect the assets of the estates, pay valid debts and distribute property.

Nolfo McKenna – Probate in New York: Exposing the Myths Part I – Albany, NY

Many people in New York cringe when they hear the word PROBATE. Wills, court, inheritance, will contests and lawyers are only some of the negative words often associated with probate, which can often be a relatively simple court process. Many of the probate proceedings I have submitted in Albany NY, Rensselaer NY, Saratoga NY and Schenectady County Surrogate’s Court have been approved relatively quickly. Probate is basically just the process the Surrogate’s Court follows to prove the validity of the will being offered by the Executor. The Executor is the person named in the will to represent the estate. If the person making the will, often called the Testator, is of sound mind and the will is signed and executed properly, and the beneficiaries who would inherit from the estate are agreeable, the probate process should proceed without problems in Albany, Saratoga, Schenectady and Rensselaer County, and the Executor should be appointed in a timely manner.

Often, if the will was executed by a person who is survived by a spouse, and the spouse is either a joint owner or a beneficiary on most of their assets, the probate and estate may be relatively small and simple. If an asset passes outside the probate estate because there is another owner listed, that asset is not a probate asset and not part of the probate proceeding, although it may be considered part of the estate for estate and inheritance tax. Such asset is considered passed to the beneficiary by operation of law.

Assuming there are assets in the Testator’s name alone, without a joint account holder or named beneficiary, those assets are called probate assets. Probate assets can include real property, bank accounts, investment accounts, antiques and collections, automobiles and other property. The total of such assets are called the probate estate.

The probate petition will include these assets, and will also include the names and addresses of all those who would inherit from the Testator, generally close family members. The probate petition may also include any charities listed in the will, and any people outside the family who are beneficiaries and would receive an inheritance under the will.

Where a will is offered for probate largely depends on the county of domicile of the Testator. If the Testator lived all their life in Albany County, and owned real property in Albany County, but temporarily moved to an assisted living facility in Rensselaer County for a few months prior to their death, the will would most likely be offered for probate in Albany County Surrogate’s Court.